Day 1 Arguments, Morning: 2nd August, 2018
The 5 judge bench consisting of Chief Justice Dipak Misra, Justices Indu Malhotra, D.Y. Chandrachud, A.K. Khanwilkar and Rohinton Nariman started hearing the challenge to the constitutionality of adultery under Section 497 of the Indian Penal Code, 1860.
On 1st August, the court heard the case very briefly. Mr. Kaleeswaram Raj appearing for the petitioner, Joseph Shine, argued that the offence of adultery should be decriminalized. He had rhetorically enquired if one should be sent to jail for having consensual sex with another person's wife.
Today, hearings resumed before the bench at 11.40 A.M. The arguments focussed on how the adultery provision violates Article 14 and embodies the notion of woman as a man’s property.
Mr. Kaleeswaram Raj argued that infidelity is bad but making it a criminal offence is not justified. He submitted that adultery as a ground for divorce is completely different from criminalising the offence; two people engaging in consensual sex do not violate the rights of others.
Justice Chandrachud weighed in by observing that Section 497 seeks to protect the sanctity of marriage. The legislature has made a value judgment which is within its competence. Nonetheless, he pointed out anomalies inherent to this section: adultery excludes sexual intercourse between a married man and an unmarried woman; it does not amount to adultery if the husband consents.
Justice Chandrachud added that if the doctrine of severability is applied to Section 497 to remove this immunity, wherein husband has given consent, it will make the offence more severe. Justice Rohinton Nariman remarked that Macaulay himself did not want adultery to be a criminal offence. Justice Chandrachud noted that an “act of connivance” is not adultery as per Section 497. Justice Indu Malhotra added that the provision shows gender bias by “treating wife as a chattel.”
Mr. Raj argued that “constitutional morality” ultimately comes down to an individual. He cited the legal philosopher Ronald Dworkin to assert that the state should not engage in moral judgments.
On the issue of right to equality, Mr. Raj argued that Section 497 discriminates against women by treating them as chattel. He also added that criminality should not be based on public disapproval- there is no reason to hold consensual sex as a criminal offence. Justice Nariman observed that there is no intelligible rationale for treating married men and women differently for the same act. He added that Section 497 also appears to be manifestly arbitrary.
Mr. Raj continued by stating that even though men and women are similarly situated, women are exempt from the adultery provision. He cited Royappa, Ajay Hasia and Anwar Ali Sarkar to support his arguments that the classification between married men and women for this offence is arbitrary.
Mr. Raj argued that Section 497 despite being a penal provision is not gender neutral and is the only provision in the criminal code to make this distinction. Justice Misra added that the adultery provision is an archaic provision and each partner has an equal responsibility to preserve the institution of marriage.
Section 497 indirectly discriminates against women, Mr. Raj noted. It visualises women as incapable of having an agency and voluntarily engaging in sexual relations. He termed this approach as “romantic paternalism”. Furthermore, it violates the sexual freedom of married women as opposed to that of a married man.
Mr. Raj then referred to the aspects of sexual privacy as laid down in Puttaswamy. CJI Dipak Misra refused to entertain arguments on sexual privacy; he clarified that the issue before the court is whether adultery should be decriminalized. Justice Misra also added that since adultery is a ground for divorce, sexual freedom cannot be considered as an unfettered right.
Mr. Raj submitted that the State does not have a "legitimate interest" in treating adultery as a criminal offence. He added that immorality cannot be a ground law. Populist majoritarian impulse is not an important consideration in laying down a criminal offence. The harm principle argues for criminalising an act which is in detriment of others; adultery provision seeks to punish people for their private thoughts and acts which are not harmful to the societal interests.
At this point, the bench rose for lunch.
(This report has been prepared by Mr. Samya Chatterjee.)